UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF PENNSYLVANIA 

 

 

BLACKWATER SECURITY CONSULTING, 

LLC, a Delaware Limited Liability Company; and 

BLACKWATER LODGE AND TRAINING 

CENTER, INC. a Delaware Corporation, 

 

 Plaintiffs, 

 

 v. 

 

WESTCHESTER SURPLUS LINES 

INSURANCE COMPANY, a Georgia 

Corporation; EVANSTON INSURANCE 

COMPANY, an Illinois Corporation; FIDELITY 

AND CASUALTY COMPANY OF NEW YORK, 

a South Carolina Corporation; and LIBERTY 

INSURANCE UNDERWRITERS, a 

Massachusetts Corporation, 

 

 Defendants. 

 

 

Civil Action No. 05 6020 

Electronically Filed 

Assigned to Judge Petrese B. Tucker 

 

DEFENDANT EVANSTON 

INSURANCE COMPANY’S ANSWER 

TO PLAINTIFFS’ MOTION FOR 

PARTIAL SUMMARY JUDGMENT 

ON THE DUTY TO DEFEND AND 

EVANSTON INSURANCE 

COMPANY’S 

CROSS-MOTION FOR SUMMARY 

JUDGMENT 

Pursuant to Rule 56 of the Federal Rules of Civil Procedure, Defendant Evanston 

Insurance Company (“Evanston”) responds to Plaintiffs’ motion for partial summary judgment 

on the duty to defend and cross-moves for summary judgment in its favor. A supporting 

memorandum, cases and a Proposed Order accompany the filing of this motion.

1

 

Evanston respectfully submits that it is entitled to summary judgment in its favor because 

the evidence on record shows no genuine issue of material fact exists and Evanston is entitled to 

judgment as a matter of law. Under the terms of Professional Liability Policy No, EO 819173, 

issued by Evanston to Plaintiffs, Evanston has no duty to defend or indemnify Plaintiffs in 

 

1 Evanston also relies upon the following exhibits to the Declaration of Andrew Howell (“Howell Decl.”), submitted 

in support of Blackwater’s Motion for Partial Summary Judgment against Evanston Insurance Company): 

(a) Evanston’s Policy, no. EO819173 (Howell Decl., Exh. A); (b) the Complaint in the underlying action captioned 

Nordan v. Blackwater Security Consulting LLC, et al., 05 CVS 000173, pending in the Superior Court of North 

Carolina, Wake County (Howell Decl., Exh. B); and (c) the February 23, 2005 declination letter sent to Blackwater 

on Evanston’s behalf (Howell Decl., Exh. E.). In addition, Evanston relies upon the Howell Decl. at ¶ 2. 

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connection with the underlying action captioned Nordan v. Blackwater Security Consulting LLC, 

et al., 05 CVS 000173, pending in the Superior Court of North Carolina, Wake County. 

Evanston also asks that the court grant summary judgment on Blackwater's claim of bad faith in 

Count IV of its complaint. 

Comparing the facts alleged in the complaint in the Nordan Complaint with the terms of 

the Policy, no possibility of coverage exists. The Policy bars coverage for claims brought by or 

in the right of Blackwater’s contractors or subcontractors. The Nordan Complaint is a wrongful 

death lawsuit filed in the right of four deceased Blackwater contractors. Therefore, Evanston has 

no duty to defend Blackwater. In the absence of a duty to defend, there can be no duty to 

indemnify. In the absence of a duty to defend or indemnify, there can be no bad faith. Evanston 

relies upon and incorporates the attached Memorandum of Law, in support thereof. 

WHEREFORE, Defendant Evanston Insurance Company respectfully request that this 

Court enter the accompanying proposed Order pursuant to Fed. Civ. P. 56. 

Respectfully submitted, 

LAVIN, O’NEIL, RICCI, CEDRONE & DISIPIO 

By: /s/ Francis P. Burns III (Valid. code fb418) 

Francis P. Burns III 

State Bar No. 27537 

190 North Independence Mall West, Suite 500 

6th & Race Streets 

Philadelphia, PA 19106 

(215) 627-0303 (ext. 7907) 

(215) 351-1900 (fax) 

fburns@lavin-law.com

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HELMS MULLISS & WICKER, PLLC 

L. D. Simmons, II 

N.C. State Bar No. 12554 

201 North Tryon Street 

Charlotte, North Carolina 28202. 

Telephone: (704) 343-2000 

Facsimile: (704) 444-8773 

ld.simmons@hmw.com

Dated August 10, 2007 Attorneys for Evanston Insurance Company

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